Ivette Campos v MACA Mining Pty Ltd
[2022] FWC 3129
•9 DECEMBER 2022
| [2022] FWC 3129 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ivette Campos
v
MACA Mining Pty Ltd
(C2022/7034)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 9 DECEMBER 2022 |
Application to deal with contraventions involving dismissal
Introduction
Ms Ivette Campos (the Applicant) has made a general protections application involving dismissal under s 365 of the Fair Work Act 2009 (the Act). The Respondent to this application is MACA Mining Pty Ltd (the Respondent). The matter was allocated to Chambers on 16 November 2022.
The Respondent objected to the application on the ground that the Applicant had not been dismissed but voluntarily resigned from her position on 28 September 2022. The Applicant contended that she was forced to resign due to a course of conduct engaged in by the Respondent and that her resignation was verbal and was subsequently retracted.
Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal. As a starting point, it requires that the person has been dismissed.
On receiving the application, the Commission is obliged to deal with this type of dispute other than by arbitration.[1] It may do this by mediation, conciliation or by making a recommendation or expressing an opinion.[2] However, if there is a dispute about whether the applicant has been dismissed, the Commission must first determine that point before it can deal with the application further.[3]
The matter was programmed for hearing to determine whether the Applicant was dismissed. However, the Applicant failed to comply with the directions issued and the Respondent applied for the application to be dismissed. I have acceded to the Respondent’s request.
In making the decision to dismiss the application, I have considered the Applicant’s position and that of the Respondent, to ensure the decision is both fair and just. Given the circumstances, I am satisfied that I should exercise my discretion under s 587(1) of the Act and dismiss the Applicant’s application to deal with contraventions involving dismissal.
The application is therefore dismissed and an Order[4] is issued to this effect. My reasons follow.
Background
Because there was a dispute about whether the Applicant had been dismissed, on 16 November 2022, a notice of listing was issued for a telephone conference to be held on 21 November 2022, at 10:30AM. The purpose of the conference was to inform the parties of the next steps in light of the Respondent’s jurisdictional objection and thereafter program the matter.
Having explained in detail what was required of the parties in the conference on 21 November 2022, directions were issued at 1:07PM on that same day with respect to the filing of materials.
On 28 November 2022, the Respondent filed its materials in accordance with the directions of 21 November 2022.
However, whilst the Applicant’s materials were to be filed by no later than 4:00PM on 5 December 2022, no materials were received by Chambers within that timeframe.
Consequently, directions were issued to the parties on 6 December 2022 at 8:47AM, outlining the Applicant’s non-compliance with the directions of 21 November 2022. In the directions to the parties, the Applicant was placed on notice of the power of the Commission to dismiss her application where there was non-compliance with the directions.
In addition to emailing the parties regarding the Applicant’s non-compliance with the directions, Chambers telephoned the Applicant at 8:48AM on that same day to again explain the materials the Applicant was required to file. Further, it was outlined in the telephone call that the Applicant should read the email carefully, then write to Chambers explaining her non-compliance and requesting an extension in which to file her materials.
At 8:57AM on 6 December 2022, the Applicant responded to Chambers’ email regarding her non-compliance with the directions. The Applicant wrote:
Apologies for not submitting required documentation. My witness has been away due to working FIFO and has not been able to prepare his statement.
Can I please ask for an extension? My witness is back tomorrow and I will get him to complete his statement.
Chambers emailed the parties at 9:31AM on 6 December 2022 as follows:
Dear Parties
Chambers refers to the Applicant’s email below regarding her non-compliance with the directions issued on 21 November 2022.
The Deputy President directs the Respondent to provide any views it has regarding the Applicant’s non-compliance by no later than 1600hrs (AWST), Tuesday, 6 December 2022 (today).
Further, it is to be noted that whilst the Applicant has provided a reason as to why the statement of her witness is late, the Applicant did not seek an extension of time in which to file her materials before the materials fell due to be filed, and further, no reasonable explanation has been provided at this point as to why the Applicant has not submitted her witness statement, submissions or supporting documentation.
If the Applicant does not wish to continue with her case, then she may prefer to file a notice of discontinuance. However, at this point, an extension has not been granted and therefore the Applicant should file her materials as a matter of urgency – namely, her witness statement, submissions and any supporting documentation.
The Applicant is also reminded that she must copy the Respondent into all correspondence with Chambers, unless confidential.
By email dated 6 December 2022, time stamped 3:16PM, the Respondent objected to the Applicant’s request for an extension of time, and further, sought that the Commission:
a) exercises its powers in accordance with section 587(1)(a) of the Fair Work Act 2009 (Cth) (FW Act) to dismiss the Applicant's application for want of prosecution;
or, in the alternative:
b) makes the following directions, in accordance with its powers under s.593 of the FW Act:
i. that the hearing on 14 December 2022 be vacated; and
ii. that the Respondent's jurisdictional objection be determined "on the papers" on the basis of the material filed by the Respondent;
and thereafter makes the finding that the Applicant resigned voluntarily, and as a consequence, has no basis to make a general protections claim, and therefore that her claim must be dismissed by the FWC in accordance with section 587(1)(a) of the FW Act.
It followed that further directions were issued on 6 December 2022 at 4:28PM to both the Applicant and the Respondent, directing the filing of materials in relation to the dismissal of the Applicant’s application under s 587 of the Act. Further, Chambers contacted the Applicant and explained to her what was required of her, regarding the directions issued in respect of the Respondent’s application under s 587 of the Act.
By email dated 7 December 2022 at 10:09PM, the Applicant filed her materials relating to the jurisdictional objection.
By email dated 8 December 2022, time stamped 9:55AM, Chambers informed the parties that the materials filed by the Applicant on 7 December 2022 did not address the s 587 application, and the Applicant was reminded that she had until 4:00PM on 8 December 2022 to file those materials.
By email dated 8 December 2022, time stamped 11:17AM, the Applicant informed Chambers that she did not understand what she was required to address. The Applicant called Chambers at 11:26AM to follow-up on her email. In that call, the directions that had been issued regarding the Respondent’s application under s 587 of the Act were explained to the Applicant.
By email dated 8 December 2022, time stamped 12:06PM, the Applicant addressed the Respondent’s application under s 587 of the Act.
The Respondent’s submissions
The Respondent submitted that the Applicant had known since 21 November 2022 that she would be required to file her materials by 4:00PM on 5 December 2022 (the Deadline). This in turn meant that the Applicant had therefore had 15 days to prepare witness statements for herself, and for any other witnesses, and to seek that her witnesses provide their statement by the Deadline.
The Respondent pressed that while the Applicant had provided reasons for why her witness could not provide his statement, she had not provided reasons for not providing her own witness statement, any documents which she intended to rely upon at the hearing, and any submissions in support of her position in compliance with the Deadline.
The Respondent added that to the best of the Respondent's knowledge, the Applicant's additional witness is her domestic partner, and therefore the Applicant would have had prior knowledge of her witness's movements and availability to make a statement.
The Respondent added that should the Commission be minded to grant the Applicant's request for an extension of time, the Respondent would have less than 48 hours within which it is required to do all things necessary to comply with the direction to file any witness statements, submissions and any other materials in reply to the Applicant's materials, namely, by 4:00PM on 8 December 2022.
With respect to the matter proceeding to hearing as listed on 14 December 2022, the Respondent pressed that it would be significantly disadvantaged due to:
a) the contracted preparation time for filing its materials in reply;
b) the contracted preparation time in getting the matter ready for arbitration thereafter;
c) the potential for an ‘ambush’ as to the facts and legal issues in dispute, or which the Applicant intends to present at the arbitration;
d) the cost in getting the matter up for hearing, including in relation to instructing counsel; and
e) the lost opportunity to the Respondent in having its two most senior HR team members make themselves available for a full day on 14 December 2022, for the purposes of cross-examination.
The Respondent added that if the Commission is not minded to grant an order for dismissal for want of prosecution, it is appropriate for the Commission to make procedural orders which would allow it to determine the jurisdictional objection ‘on the papers’ and without the need for the parties' attendance.
The Respondent argued that the Commission is entitled to assume that the facts asserted by the Respondent in its witness statements are not contested by the Applicant, as she had provided no valid reason for her non-compliance with the directions.
Observing that as a general proposition the Commission is not required to hold a hearing in performing its functions or exercising its powers, except as provided by the Act,[5] the Respondent argued that it is open to the Commission to determine the Respondent's jurisdictional objection to the Applicant's claim ‘on the papers’, and in the absence of the Applicant's materials being filed.
The Respondent submitted that in light of the disadvantage to the Respondent in continuing to prepare for an arbitration without adequate notice of the Applicant's position, the Respondent sought that the matter be finally determined as a matter of priority.
In response to the Applicant’s submissions regarding the reasons for the delay in filing her materials, the Respondent observed that the Applicant had not provided a medical certificate certifying her as unfit for the entire period from 21 November 2022 to 7 December 2022, which would support her assertion that she was unable, during the entire 16-day period, to attend to her witness statement. Furthermore, the Applicant had still not provided any reason why she could not have alerted the Commission to her medical issues prior to her non-compliance, and sought an extension of time (either herself, or through a representative on her behalf).
The Respondent submitted that in the absence of medical evidence that the Applicant was physically and mentally incapable of preparing her witness statement, and any positive attempt by her to seek an extension prior to her non-compliance, that her assertion that she was too medically unwell to do so should not be accepted by the Commission as a sufficient reason excusing the non-compliance.
The Respondent further submitted that the directions made on 21 November 2022 were that the Applicant was required to file with Chambers and serve on the other party written submissions, witness statements, a document list, and any material (i.e., the documents listed in the document list) upon which she wished to rely relating to the jurisdictional objection. However, while the Applicant had now partially complied with the directions of 21 November 2022, she had not provided her written submissions, document list or any other material such as authorities, in support of her position.
The Applicant’ submissions
The Applicant acknowledged she was given 15 days to prepare her materials in respect of her argument that she had been dismissed. She noted, however, that she had been mentally unwell, suffering from clinical depression.
The Applicant further noted that her witness, a Mr Phill Lowe, had returned from work (site) on 7 December 2022 at 10:00AM and had not had the time to prepare his statement as he works two weeks away at a mine site, on 12-hour shifts.
The Applicant pressed that her application should not be dismissed by the Commission under s 587 of the Act as her application had been made in accordance with the Act and was not frivolous or vexatious. The Applicant expressed that she believed her application had potential for success as she had been poorly treated by the Respondent and had been constructively dismissed by it.
Consideration
Section 587 of the Act provides as follows:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
In the decision of Mcleod v Kulgera Trading Co Pty Ltd, the Vice President dismissed an application to deal with contraventions involving dismissal under s 365 of the Act, pursuant to the dismissal provision in s 587 of the Act.[6] In doing so, the decision of Commissioner Gooley in Tomas v Symbion Health (Tomas) was relied upon and reference was made to the following passages regarding the operation of s 587:
[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.
[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.[7]
While apparent that the decision of Tomas addressed an unfair dismissal application, the Vice President considered the reasoning applicable to an application under s 365 notwithstanding the limitation set out in s 587(2) of the Act. The decision of Tomas has been subsequently followed, and other decisions of this Commission have relied upon s 587 to dismiss applications brought under s 365.[8]
In line with other decisions of this Commission, it is apparent that the words at the commencement of s 587(1), namely, ‘[w]ithout limiting when FWC may dismiss an application,’ make clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in ss 587(1)(a), (b) or (c).
I have decided to dismiss the Applicant’s application for the following reasons.
The Applicant has demonstrated non-compliance with the directions of this Commission by having not filed her materials by 5 December 2022. The Applicant did not seek an extension of time in which to file her materials prior to them falling due to be filed. This is against a backdrop where at the conference on 21 November 2022, the parties were informed of the next steps in respect of the application in light of the jurisdictional objection. The Applicant did not advise at that time that she was incapacitated such that she could not attend the conference or that she did not understand what was required of her to advance her application.
Thereafter, directions were issued at 1:07PM on 21 November 2022 with respect to the filing of materials, and the matter was listed. The timeframe for the filing of materials was condensed, but such timeframe arguably weighed against the Respondent who was required to file materials first. Nevertheless, the Respondent did not object to the timeframe or to filing its materials first.
After the issuance of the directions, the Applicant did not indicate that she did not understand what was required of her, did not indicate that she required additional time in which to file her materials because she was incapacitated, or that the hearing date was unsuitable.
As observed, on 28 November 2022, the Respondent filed its materials in response to the directions of 21 November 2022. The Applicant again made no indication that she was unable to comply with the directions of 21 November 2022 or was otherwise confused as to what she was required to do.
Having failed to file her materials by the 4:00PM deadline on 5 December 2022, it was Chambers that alerted the parties to the Applicant’s non-compliance. It did so by both email and a telephone call to the Applicant.
Whilst the Applicant appropriately apologised for not submitting the required documentation, her reason for not doing so, namely the absence of her witness, did not address why her own witness statement, submissions or other documents had not been filed. It was open to the Applicant to file her materials as best she could and seek an extension of time in which to file the witness statement of her witness.
The Applicant now argues that her application should not be dismissed because notwithstanding the 15 days provided to prepare her materials in respect of her argument that she had been dismissed, she had been mentally unwell suffering from clinical depression. Chambers had received no notification of this prior to 8 December 2022 and as already observed, there had been ample opportunity prior to 5 December 2022 for the Applicant to seek an extension of time in which to file her materials.
The Applicant ultimately filed her substantive materials addressing the Respondent’s jurisdictional objection on 7 December 2022, some five working days prior to the hearing, and one day prior to the Respondent being due to file its materials in reply.
Effectively, the Applicant’s disregard for the directions compromised the timetable of the matter and placed into jeopardy the listing date. This is notwithstanding the ongoing support provided to the Applicant in the form of holding a conference to carefully detail the steps required in progressing her application, conferring with the parties in respect of a hearing date, issuing comprehensive directions regarding what was required of the parties, requiring the Respondent to file its materials first, and following up with telephone calls to further explain the process.
It is noted that whilst the Respondent had in the alternative urged that the hearing on 14 December 2022 be vacated and its jurisdictional objection be determined ‘on the papers’, given the factual contest between the parties as to whether or not there had been a dismissal as that term is understood by reference to s 386 of the Act, and in light of the Applicant’s non-compliance, I considered it inappropriate to adopt that approach. At the hearing, the Respondent confirmed that given the Applicant had only lately partially complied with the directions of 21 November 2022, the Respondent was not agreeable to an adjournment.
The power to dismiss an application where there is an unreasonable or unexplained non-compliance with the Commission’s listings or directions is exercisable by the Commission on application. This is evident by the language used in s 587(3)(b) of the Act. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[9]
Should the application not be dismissed, the Respondent would, in accordance with my directions issued on 21 November2022, be placed in the unenviable position of providing a reply to the Applicant’s substantive materials concerning the s 365 application the day after receiving them.
Ultimately, the Applicant bears the responsibility of prosecuting her case and complying with the directions of this Commission. Whilst the Applicant has complied with the directions with respect to responding to the application made under s 587, she has done so after prompting. At all material times, it was open to the Applicant to notify the Commission in a timely manner of extension requests or adjournment requests and to provide in support of those requests evidence. It is not onerous or unfair to require such conduct in proceedings. It minimises both the disruption to the programming of matters and prejudice towards another party who is expending time and resources responding to documentation filed, preparing for a conference or hearing and attending the same.
The Commission is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. One is also always guided by the principle that the power to dismiss a substantive application should only be exercised cautiously and sparingly.[10] A cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.[11]
However, in all the circumstances, I am satisfied that the Applicant was aware of what was required of her regarding compliance with the directions given that time had been taken to explain to the Applicant the process and importance of compliance. In my view, the Applicant disregarded the directions of 21 November 2022, such that it cannot be said that she is pursuing her application with the attention deserved. The Applicant’s inaction has effectively derailed the programming of the matter in the absence of a plausible excuse supported by evidence and has inevitably required the Respondent and this Commission to expend resources and time because of her conduct. This situation was avoidable had the Applicant accepted what was required of her in prosecuting her case and acted accordingly.
Conclusion
I have concluded that ‘fairness, justice, equity and good conscience’ warrants the exercise of the discretion under s 587(1) of the Act for the dismissal of this application for want of prosecution.
DEPUTY PRESIDENT
Appearances:
Ms I Campos, Applicant.
Ms A Greenwood, for the Respondent.
Hearing details:
2022.
Perth (via telephone):
9 December.
[1] Fair Work Act 2009 (Cth) s 368.
[2] Ibid.
[3] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 605 [67].
[4] PR748739.
[5] Fair Work Act 2009 (Cth) s 593(1); Gutzeit v Liquorland (Qld) Pty Ltd[2015] FWCFB 1257.
[6] [2014] FWC 2112.
[7] [2011] FWA 5458 [57] – [58].
[8] See, eg, Hawes v Plastic Planet Pty Ltd[2014] FWC 6457; Guest v Waddell Family Investments Pty Ltd [2014] FWC 4607.
[9] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].
[10] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].
[11] Ibid.
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